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Google Print and the Aerospace Analogy: Lessig's Counterfactual History

Progress Snapshot
Release 1.19 November 2005

By James V. Delong *

In a recent blog about Google Print [1], Stanford Law Professor Larry Lessig repeats a story that is also at the center of his book Free Culture. He cites the 1946 airplane noise case of U.S. v. Causby [2] as clearing the way for the air age by overthrowing the old legal doctrine that a landowner's property extends to the heavens, thus making the airspace into a commons. He then draws an analogy to Google Print, arguing that the old copyright regime must be similarly overthrown in the name of the new commons of the Internet Age.

Unfortunately, his depiction misstates the issues in Causby, ignores the fact that the landowner actually won, and fails to mention that the case stands for close to the opposite of the principles for which he cites it. Its basic teaching is that not even a government, let alone a private party, is permitted to simply decree that something is now a commons, without regard to the impact on existing rights.

Lessig's description of Causby goes as follows:

"This is the best case to illustrate the story I told at the start of Free Culture. Property law since time immemorial had held that your land reached from the ground to the heavens. Then airplanes were invented - a technology oblivious to this ancient law. A couple of farmers sued to enforce their ancient rights - insisting airplanes can't fly over land without their permission. And thus the Supreme Court had to decide whether this ancient law - much older than the law of copyright - should prevail over this new technology.

"The Supreme Court's answer was perfectly clear: Absolutely not. 'Common sense revolts at the idea,' Justice Douglas wrote. And with that sentence, hundreds of years of property law was gone, and the world was a much wealthier place."

Here are a few more facts.

The case was by no means an effort by a couple of farmers to use the old common law doctrine to extract a ransom from the new air age. The unfortunate Mr. Causby owned a chicken farm near a U.S. military airfield, and heavy bombers flew over it day and night at altitudes as low as 83 feet. He argued that the disruption constituted a "taking" of an easement in his property by the government for which he should be paid, given that the Fifth Amendment forbids taking private property without compensation.

The government defended on the theory that the Air Commerce Act of 1926 had declared the navigable air space of the U.S. to be a commons open to all citizens and that the army bombers were in that space, so: Tough!

The Supreme Court started its musings with the language loved by Lessig, about how the old common law doctrine that the landowner possesses to the end of the universe has no place in the modern world, and that Congress was obviously correct to declare it a public highway.

However, the Court went on, it was equally obvious that a landowner owns some rights in the air; otherwise, how could he build anything? Ergo, while the exact boundaries might be murky, flights so low as to interfere with the use of the surface did indeed constitute an intrusion on the owner's rights, and Causby won.

There was more legal rigmarole on exactly what air space Congress had decreed to be a commons, on the state law on air rights, and on the glide paths, but "Causby wins" was the bottom line. And in later cases the courts have made clear that glide paths must be paid for, just like the land for runways. [See Griggs [3] and County of Westchester [4].]

So how does this actually apply to Google Print? The first answer is "not at all," since Google is not the government (yet). But assume it were a government, with power of eminent domain, and decided to implement Google Print. Under takings law, the question would be whether the action damages the publishers; as Causby also said, the measure of the value is the owner's loss, not the taker's gain. Causby was entitled only to the decline in his property value, not to a share of the gains from the air age.

Even though Google is a private party, one can discern a possible relevant principle in the airspace cases. But the connections are much trickier than Lessig's truncated version.

To repeat, the basic principle of Causby is that no government, let alone a private party, is permitted to simply decree that something is now a commons, without regard to the impact on existing rights. Google's lawyers should cite the case rather carefully.


* James DeLong is senior fellow and director of the Center for the Study of Digital Property at The Progress and Freedom Foundation. The views expressed here are his own and do not necessarily reflect those of The Progress and Freedom Foundation, its officers or Board of Directors.

  1. http://www.lessig.org/blog/archives/003140.shtml
  2. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=328&invol=256
  3. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=369&invol=84
  4. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=2nd&navby=case&no=957010




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